This matter came to the court on inquest after the respondent failed to appear on three different occasions. The petition alleges that the respondent neglected her child and failed to provide proper guardianship and supervision.

In a child neglect case, the petitioner is required to prove by a preponderance of material and relevant evidence that the subject child’s emotional, physical and mental well-being was impaired (FCA 1046 (b)(1). It must also be proven that the harm to the child was directly caused by the respondent’s failure to provide a minimum degree of care (Nicholson v. Scopetta, 3 NY 3d 357, 368 (2004).

To satisfy the first element, the petitioner must be able to prove that there was actual, or imminent danger to the child of physical, emotional or mental harm. There must be “serious or potential harm” not just bad parenting behavior.

Imminent danger is a separate element on which the allegation of negligence can be based. The danger must be near or impending, not just a possibility in the future. These evidentiary standards must be met upon inquest.

The court in Nicholson said that impairment of an emotional or mental state was defined as follows: “A state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior including incorrigibility, governability, or habitual truancy; provided however that such impairment must be clearly attributable to the inability of the respondent to exercise a minimum degree of care toward the child.”

In Nicholson the Court of Appeals rejected the presumption that a child who has witnessed abuse has been a victim of neglect. Only an allegation isn’t enough. A neglect allegation is only permitted where the evidence submitted reflects actual or imminent harm to the child (Nicholson 3 NY 3d 371). It also rejected the notion child neglect was committed when an untreated sex offender is living with a child.

The court held that these requirements must be met in the present case. Unlike where the child has suffered a visible physical injury, the question of the child’s mental state or whether they are impaired or not is a grey area. There must be a direct correlation between the impairment of the child and the inability of the parent to provide proper supervision and guidance.

In this case, the 7-year-old child was on an overnight visit to her mother’s house. She was allowed to sleep with her mother and her mother’s boyfriend. When the child awoke, she saw her mother taking naked pictures of her boyfriend.

The respondent’s mother also reported that the respondent freely admitted to having sexual relations with her boyfriend while her daughter was in the same bed. The child said that her mother had shown her pictures of naked men on her phone. The aunt added that the child didn’t seem upset with any of this.

The court said that while this behavior was improper, there is no evidence that the child suffered an actual harm or any potential harm. The court can’t presume that a child’s emotional or mental state was affected by the mother’s actions. There must be evidence (see In re Lonell J., 242 A.D. 2d 58) such as behavioral problems (anger, bedwetting rebellion, etc.).

Often when a child has been neglected, children will exhibit various behaviors or symptoms such as poor performance at school, eating disorders, anxiety or depression.

While a negative inference could be made by the mother no attending the hearing, even the strongest inference is not enough and can’t provide the missing element of proof.

In the absence of any other evidence of the child’s emotional, physical or mental state showing impairment or imminent danger of impairment, the petition was dismissed.

Family law issues can be stressful. Whether you have an issue regarding custody, child abuse and neglect or spousal support, our firm can help. Contact Stephen Bilkis and Associates for a free consultation. We have offices to serve you in Manhattan, the Bronx, Brooklyn, Staten Island, Nassau County, Suffolk County and Westchester County. Contact us at 1-800-NYNYLAW.